Written by Éamon Chawke | March 16, 2023
Toblerone is an IP practitioner’s dream product. It has it all. The iconic name and logo are protected as trade marks, the design and layout of the packaging is protected by copyright, and the shapes of the chocolate bar and its packaging are registered as trade marks and designs.
However, one of the major complexities surrounding IP rights is that they are governed by national and in some cases regional and international laws. Therefore, the extent to which a particular product, its brand, its design etc. is protected often varies from territory to territory.
One of the peculiarities of the Swiss legal system is that if you want to use certain words and images that relate to Switzerland, you have to show that you have a connection to Switzerland.
For example, we are aware that an application for a trade mark incorporating the word MONTANA was recently refused in Switzerland, because the word was viewed as descriptive of a well-known region in Switzerland; and it would only have been possible to secure registration of the trade mark if the Swiss trade mark office was satisfied that it had acquired a secondary meaning.
In Toblerone’s case, the company’s decision to move some of the chocolate bar’s production outside Switzerland meant that it was no longer in compliance with certain marketing restrictions relating to the use of Swiss iconography. Accordingly, the image of the Matterhorn mountain peak had to be removed from Toblerone’s packaging and replaced with the a more generic image of an Alpine mountain; and the wording on the packaging had to be changed to “established in Switzerland”, rather than “of Switzerland”.
The relevant Swiss legislation provides that for milk-based product to be described as “made in Switzerland”, 100% of the raw ingredients must be sourced from Switzerland (with exceptions for ingredients, such as cocoa, that can’t be sourced such Switzerland) and the majority of processing must also take place in Switzerland. The rationale for the legislation is that products branded as “made in Switzerland” are apparently sold at prices 20% higher than comparable goods from other countries.
As this case indicates, there are a myriad of issues to consider when manufacturing, marketing, selling and distributing food products (or indeed any products) internationally. These include, in particular, issues that may arise relating to branding and trade marks, as well as issues that may arise relating to packing design and labeling regulations.
If you are considering launching a new product and you are seeking advice on the intellectual property issues, and related legal issues, it’s a good idea to consider at least the following points:
Briffa is a firm of specialist intellectual property lawyers who advise a broad spectrum of businesses on the legal issues arising in relation to the identification, protection, commercialisation and enforcement of their intellectual property rights at home and abroad. If you would like to arrange a free 30-minute consultation, please feel free to get in touch on firstname.lastname@example.org
Written by Éamon Chawke – Partner
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